AoS Eligibility Question

#1
Hi everyone,

I'm writing in order to get your opinion on my eligibility for adjustment of status.

I married my wife in April 2006, when she was still a legal permanent resident. She became a naturalized US citizen in August 2009. We filed an i-130 in December 2008. Our i-130 was approved on September 28, 2009.

In January 2009, we found out that my wife was expecting our first child. Because of this circumstance, I filed for a B2 visa at my local US embassy, which got granted. In August, I traveled to the US to be here for the birth of our first child who was born on September 13, 2009.

I am currently still in the US, in status until February 9, 2010.

So my question is whether I qualify for Adjustment of Status or if I have to travel to Europe for Consular processing. Does anyone have light to shed on this issue?

The reason I am in doubt is because I received the B2 visa in order to temporarily visit the US to be there for the birth of our child. But since our Petition got approved very speedily, I am now wondering if I could stay in the US and not have to leave wife and baby (even if it's only for a short duration I'd prefer to stay).

I hope someone can help.

Best,
J
 

paul4gc

Registered Users (C)
#2
You can't apply for AOS while visiting on B2 visa. You better go to your home country and come back on K3 visa, with that you can apply for AOS.
 

Jackolantern

Registered Users (C)
#3
You can't apply for AOS while visiting on B2 visa.
That is not true. B2 to AOS is the "dirtier" way to pursue a green card, and you won't be granted a B2 visa if you tell the consular officer that you plan to file for AOS. However, once inside the US, if you are married to a US citizen they normally will hold their nose and approve the AOS anyway (assuming no other disqualifying factors like criminal record or fraud).
You better go to your home country and come back on K3 visa, with that you can apply for AOS.
That would be a waste of time and money, given that there is already an approved I-130.
 

Jackolantern

Registered Users (C)
#4
So my question is whether I qualify for Adjustment of Status or if I have to travel to Europe for Consular processing. Does anyone have light to shed on this issue?
Being married to a US citizen, you are eligible to file for AOS, however, coming from a B2 visa is not the "clean" way to do it. Let me explain.

The B2 visa requires nonimmigrant intent, and they would not have granted the visa if they knew you were going to attempt AOS. Normally, with you being married to a permanent resident and having a pending I-130, they would have rejected your B2 application in 5 seconds. But yours probably was granted because you are from a European country with a very low rate of people who use the B2 visa as a stepping stone to stay permanently (whether legally or illegally), so they figured you would leave the US before your visa expires.

If you go ahead and apply for Adjustment of Status, you will probably get approved, but there will be consequences to others. The officer who approved your visa will get a bad note on their record for approving your visa (yes, they do trace these things back to the officer who approved the visa ... a friend who used to interview people at a US embassy explained this to me). Your case will be added to the statistics of people from your country who deviate from the terms of their B2 visa, thus making it potentially harder for your fellow citizens to get a B2 visa. And if you are from a visa waiver country, your case is also added to the statistics for deciding whether to maintain your country in the visa waiver program (yes, countries have been revoked from the program). Conversely, if you are not from a visa waiver country, your case is added to the statistics for deciding whether your country will join the visa waiver program in the future.

Don't you have to return to your country anyway to sell off your belongings (or ship them to the US) and close out your other stuff like bank accounts, etc.?

Note that if you decide to go ahead with consular processing, your wife should notify the NVC of her citizenship status.
 
#5
Being married to a US citizen, you are eligible to file for AOS, however, coming from a B2 visa is not the "clean" way to do it. Let me explain.

The B2 visa requires nonimmigrant intent, and they would not have granted the visa if they knew you were going to attempt AOS. Normally, with you being married to a permanent resident and having a pending I-130, they would have rejected your B2 application in 5 seconds. But yours probably was granted because you are from a European country with a very low rate of people who use the B2 visa as a stepping stone to stay permanently (whether legally or illegally), so they figured you would leave the US before your visa expires.

If you go ahead and apply for Adjustment of Status, you will probably get approved, but there will be consequences to others. The officer who approved your visa will get a bad note on their record for approving your visa (yes, they do trace these things back to the officer who approved the visa ... a friend who used to interview people at a US embassy explained this to me). Your case will be added to the statistics of people from your country who deviate from the terms of their B2 visa, thus making it potentially harder for your fellow citizens to get a B2 visa. And if you are from a visa waiver country, your case is also added to the statistics for deciding whether to maintain your country in the visa waiver program (yes, countries have been revoked from the program). Conversely, if you are not from a visa waiver country, your case is added to the statistics for deciding whether your country will join the visa waiver program in the future.

Don't you have to return to your country anyway to sell off your belongings (or ship them to the US) and close out your other stuff like bank accounts, etc.?

Note that if you decide to go ahead with consular processing, your wife should notify the NVC of her citizenship status.
Many thanks for your reply.
Given this information, it's an easy decision to return and do Consular Processing.
I never, in the first place, intended to stay in the US, but at this juncture it's hard to have to leave both wife and child (again) even if it is a short term thing.

As for the grant of my B2 visa, there was a healthy dose of skepticism from the people at the Copenhagen embassy at first, but as I was being honest and forthright about our situation they thought it was fine for me to come visit for the birth of my son.

Anyway, I shall be paying the IV fees sometime soon and then I'll make a trip back to Denmark and hopefully it'll be as fast as the last time (took a single day to get passport back after the decision was made).

Thanks again for your reply (and the ones before). Much obliged.

Best,
J

Edit: The i-130 got upgraded to petition of immediate relative a few days after my wife became a citizen, so I assume the case handed to the NVC will reflect this.
 

Jackolantern

Registered Users (C)
#6
As for the grant of my B2 visa, there was a healthy dose of skepticism from the people at the Copenhagen embassy at first, but as I was being honest and forthright about our situation they thought it was fine for me to come visit for the birth of my son.
So they actually discussed those details with you? All the more reason to honor the trust they had in you and return to Copenhagen, so their boss won't hassle them and they won't have a bad memory of your case when the next guy applies with a similar situation.
Edit: The i-130 got upgraded to petition of immediate relative a few days after my wife became a citizen, so I assume the case handed to the NVC will reflect this.
If they have indeed gone as far as to officially upgrade the petition, combined with the fact that the I-130 is approved, at this stage you will likely have your green card a few months faster if you just go ahead and complete the process at the consulate. If you apply for AOS, the paperwork and processing involved will be almost like redoing the whole process from scratch, except that you have an approved I-130 which would not have to be refiled.
 
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#7
So they actually discussed those details with you? All the more reason to honor the trust they had in you and return to Copenhagen, so their boss won't hassle them and they won't have a bad memory of your case when the next guy applies with a similar situation.
The whole reason I applied for a B2 was that I felt I should be open about having a pending immigration petition and a strong family relationship to the US. So when I applied, I made them aware of all these factors.
At the time I applied, I wasn't even aware of the Adjustment of Status option, so it didn't enter into my mind. Furthermore, I thought it would be a lot longer until the I-130 got approved, but once my wife was naturalized, things started moving VERY quickly (and thank God for that) :)

If they have indeed gone as far as to officially upgrade the petition, combined with the fact that the I-130 is approved, at this stage you will likely have your green card a few months faster if you just go ahead and complete the process at the consulate. If you apply for AOS, the paperwork and processing involved will be almost like redoing the whole process from scratch, except that you have an approved I-130 which would not have to be refiled.
The i-130 was upgraded (they sent us a receipt that it was updated from a PR petition to Petition for Immediate Relative of US Citizen) and about a month and a half later was approved (NOA2 in mail).
Case has recently been sent to the NVC (don't have an NVC case number yet) and we've been planning for me to leave to Copenhagen for the interview as soon as the affidavit of support has been approved and the interview has been scheduled. That's when I read about adjustment of status. For reasons of convenience, I would have much preferred to stay in the US even if the Green card process took a little longer.

My wife and I have been together for close to 6 years now and I've been fortunate enough that my job has allowed me to travel/telecommute enough so that we could see each other frequently or somewhat frequently anyway.
During these last 6 years, I've known that we were settling in the US, which is why my personal belongings and ties to Europe (at this stage) are fairly minimal. Staying in the US would not have any significant impact on my life, and would have only saved us money and time. Transatlantic flex tickets are costly :)
 
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